M.R.B. v. S.S., 2017AP1217-1219, 10/5/17, District 4 (1-judge opinion, ineligible for publication); case activity
This slim opinion delivers hard blows to a father resisting the termination of his parental rights. They concern circuit court competency, a request for a continuance, and the sufficiency of evidence in determining whether termination was in the best interests of his children. The court of appeals’ reasoning on the last point supplies fodder for a petition for review.
On November 4, 2015, the circuit court held an initial hearing on M.R.B.’s petitions to terminate S.S.’s rights to his 3 kids. S.S. didn’t appear in person or cby ounsel, but the court delayed holding a dispositonal hearing due to parallel adoption proceedings set for December 23, 2015. No further hearing was held until February 28, 2017, where S.S. appeared and argued that he had not been properly served and requested a continuance so he could have an attorney present to help him. The circuit court found that S.S. was properly served, denied the continuance, and terminated his rights.
On appeal, S.S. argued that the circuit court lost competency to proceed when it failed to hold a disposition hearing within the statutorily-required time. He lost that point because §48.315(3) says that the court’s failure to act within any required time period does not deprive it of competency to proceed. Op. ¶9.
S.S. next argued that the circuit court erred in denying him a continuance. The court of appeals rejected this argument because the circuit court had found that S.S. was properly served, defaulted in November 2015, and then didn’t appear in this case for another 15 months (although doesn’t mention any other hearing he should have been at). Op. ¶12.
S.S. also pointed out that the circuit court did not take any evidence regarding the best interests of the child at the dispositional hearing. The court of appeals admitted this was true, but affirmed the decision anyway because:
¶17 . . . The court did, however, hear evidence relevant to disposition during the fact-finding phase, and the court took judicial notice of the parallel adoption proceedings over which the court was also presiding. It is apparent that the court considered the information from those proceedings in applying the required statutory factors and in concluding that termination of S.S.’s parental rights was in the children’s best interests. S.S. does not argue that the court erred in taking judicial notice of the adoption proceedings. Nor, as far as I can tell, does S.S. argue that the record in the adoption proceedings, when combined with the evidence in the termination proceedings, was inadequate to support termination.
TPR records are confidential so we don’t have access to the briefs. The opinion itself does not say whether S.S. challenged the circuit court’s finding of proper service, but if he wasn’t properly served that would surely explain his failure to appear at the first hearing. But what raises a red flag is the court of appeals holding that a circuit court needn’t take any evidence at a dispositional hearing. It can just take “judicial notice” of the evidence presented at a parallel adoption proceeding. Is there a confrontation problem here? And what about §902.01(2)? A circuit court may take notice of facts that are not subject to reasonable dispute. Surely there is room for dispute about the best interests of a child. In any event, a circuit court cannot take judicial notice of its own records in another case. See State v. Christian, 142 Wis. 2d 742, 746, 419 N.W.2d 319 (Ct. App. 1987).
2 points:
(1) the COA did note, at para. 13, that appellant did not challenge service as improper.
(2) The quote in State v. Christian that, “a circuit court cannot take judicial notice of its own records in another case” is from Perkins v. State, 61 Wis. 2d 341, 346 (1973), which predated 902.01 and is limited to its facts, as pointed out by the Court of Appeals in State v. Topping, https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=3633, which upheld, with some restrictions, the use of judicial notice under 902.01 as a means of proof of prior convictions to prove repeater enhancers.
Points well taken. Thanks, Andrea!